Facts
The case concerns [X.] , who was a member of the Board of Directors of [A.] Holding AG and its subsidiaries Ab[. AG] and [B. AG] . The companies were over-indebted at the end of 2001 and went bankrupt in July/August 2002, with the creditors suffering a loss of around 21 million Swiss francs. [X.] was accused of informing the bankruptcy judge about the over-indebtedness too late, thereby violating his duty to report under Art. 725 para. 2 CO.
The Cantonal Court of St. Gallen convicted [X.] in the second instance of multiple mismanagement and sentenced him to a conditional fine of 35 daily rates of 80 Swiss francs with a probation period of two years.
Considerations
The Federal Supreme Court largely dismissed [X.] 's appeal against the judgment of the lower court.
The Federal Supreme Court stated that as a member of the Board of Directors of the joint-stock companies, [X.] was obliged to manage the assets with due care. The violation of the duty to report over-indebtedness under Art. 725 CO constitutes negligent professional conduct within the meaning of Art. 165 SCC. [X.] should have taken concrete, short-term restructuring measures no later…